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ELCPartially AllowedConstitutional Petition No. 17 of 2018 (formerly Machakos High Court Constitutional Petition No. 17 of 2018)· [2024] KEELC 402 (KLR)

Kamangu & another v Karioki (Civil Appeal E34 of 2021) [2024] KEELC 402 (KLR)

High Court of Kenya
14 May 2021
1,569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's High Court struck down Kericho County's boda boda law, confirming that boda boda regulation belongs to the national government through NTSA, not counties.

What this practically means

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Executive summary

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The petitioner challenged the constitutionality of the Kericho County Boda Boda Operators (Regulations and Administration) Act, 2020 on the grounds that the County Assembly of Kericho lacked the mandate to regulate boda boda operations; that the Act violated the petitioner's rights under Articles 10, 27, 33, 47, 73, 129, 247(4) and 232(1)(b) of the Constitution; and that the Act was enacted without adequate public participation. The court framed five issues for determination. First, it held that the NTSA is the body mandated to regulate public service vehicles, including boda bodas, under the National Transport and Safety Authority Act and the Traffic Act, and that a county assembly cannot confer on a county government a function exercised by the national government. Second, the court found that the enactment of the Act violated Article 185(2) of the Constitution. Third, the court held that the residency requirement under Section 7(1)(a) read with Section 10 of the Act violated Article 27 of the Constitution. Fourth, the court found the Act ultra vires the Constitution. However, the court declined to find a violation of Article 10 for want of public participation, holding that the respondents had demonstrated that adequate public participation was undertaken through newspapers, radio and public barazas. The court also declined to issue declarations of rights violations founded on bare allegations. The petition succeeded in part, and the respondents were ordered to pay costs.

Key legal issues

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01

Whether a county assembly can regulate boda boda operations

Holding

No; boda boda operations are already comprehensively regulated under national legislation, and the county assembly's assumption of that mandate violates Article 185(2) of the Constitution

Reasoning

Article 185(2) provides that county assembly legislation may not confer on a county government any function exercised by the national government. The court found that the NTSA is the body mandated to regulate public service vehicles, which include boda bodas, and that a county assembly cannot regulate a matter that has national implications. The court relied on the definition of 'boda boda' in the NTSA Act and the Transport Licensing Act and on previous authorities on conflicts between national and county legislation.

02

Whether Section 10 of the Act read with Section 7(1)(a) violated Article 27

Holding

Yes; the requirement that only persons resident in the county, or operating within the county as their principal place of business, be registered as boda boda operators was discriminatory

Reasoning

The court found that the impugned provisions denied non-residents within Kericho County the right to operate boda bodas, yet such persons were entitled to reside and carry on business anywhere in Kenya. This was a violation of the right to non-discrimination and of the freedom of movement. The court held that no reasonable justification had been advanced for the discriminatory treatment.

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Whether the Act violated Article 10 by reason of want of public participation

Holding

No; there was adequate public participation in the enactment of the Act

Reasoning

The 2nd and 3rd respondents placed evidence before the court in the form of affidavit evidence, and were not seriously challenged or controverted by the petitioner, showing that public participation was undertaken through notices in newspapers, radio announcements, and public barazas. The court held that the petitioner failed to discharge the burden of proving want of public participation.

04

Whether the mandatory imprisonment terms under the Act were inconsistent with the Constitution

Holding

No; the impugned sections of the Act were not in issue on this head and the petitioner failed to demonstrate any violation

Reasoning

The petitioner challenged the minimum sentences provided under the Act on the ground that they violated the separation of powers doctrine. The court found that no sufficient evidence had been adduced to support the allegation, and declined to issue declarations on the basis of speculation.

Legal principles established

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  • Where a county law creates a public office, the appointing or nominating body must ensure that the appointment process is transparent and fair and accords with the constitutional principles applicable to public appointments
  • Where the national government has enacted comprehensive legislation on a matter, a county government is precluded from enacting legislation that is inconsistent with that legislation, or from assuming a mandate that the national legislation vests in a national organ

Court orders

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  1. 1.A declaration is issued that the National Transport and Safety Authority has the mandate and capacity to regulate the operations of boda boda operators as public service vehicles under the National Transport and Safety Authority Act and the Traffic Act
  2. 2.A declaration is issued that the enactment of the Kericho County Boda Boda Operators (Regulations and Administration) Act, 2020 by the County Assembly of Kericho violates Article 185(2) of the Constitution of Kenya, 2010
  3. 3.A declaration is issued that Section 10 of the Kericho County Boda Boda Operators (Regulations and Administration) Act, 2020 as read with Section 7(1)(a) of the said Act violates Article 27 of the Constitution of Kenya, 2010
  4. 4.A declaration is issued that the enactment of the Kericho County Boda Boda Operators (Regulations and Administration) Act, 2020 is ultra vires the Constitution of Kenya, 2010 to the extent of the inconsistencies with the Constitution set out in the declarations above
  5. 5.The respondents jointly and severally to pay the costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(4), 10, 22, 24, 27, 33, 47, 73, 118, 129, 165, 174, 185(2), 186, 189, 191(2), 196, 201, 202, 206, 207, 209, 232, 247(4), 259(1)
  • Kericho County Boda Boda Operators (Regulations and Administration) Act, 2020Sections 2, 4, 6, 7, 8, 10, 14, 15, 16, 17, 18, 19, 20, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54
  • National Transport and Safety Authority ActSections 4, 5A, 5B
  • Traffic ActSections 2, 5, 42
  • Interpretation and General Provisions ActSection 3(2)
  • Civil Procedure ActSection 3A
Jurisdiction invoked
Article 22 of the Constitution of Kenya, 2010 (enforcement of the Bill of Rights), read with Article 165(1)(b) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kamangu & another v Karioki (Civil Appeal E34 of 2021) [2024] KEELC 402 (KLR)", Case Analysis (2021). Constitutional Petition No. 17 of 2018 (formerly Machakos High Court Constitutional Petition No. 17 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/402/eng@2024-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.